State Consumer Disputes Redressal Commission
Sri Sougata Bhattacharya vs Cox And Kings Ltd. on 17 January, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/447/2017 (Arisen out of Order Dated 17/03/2017 in Case No. Complaint Case No. CC/597/2016 of District Kolkata-II(Central)) 1. Sri Sougata Bhattacharya 53/9, Priya Nath Middya Road, P.O. - Belghoria, Kolkata- 700 056. 2. Smt. Sumita De 2/1, Srinath Das Lane, Bowbazar, Kolkata -700 012. ...........Appellant(s) Versus 1. Cox and Kings Ltd. 6, Little Russell Street, Kolkata -71, P.S. - Shakespeare Sarani. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: In-person/, Advocate For the Respondent: Sudip Bose, Advocate Dated : 17 Jan 2018 Final Order / Judgement
Date of Filing - 13.04.2017 Date of Hearing - 03.01.2018 The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') has been filed by the Complainants to assail the Order No.08 dated 17.03.2017 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-II (in short, Ld. District Forum) in Consumer Complaint No. 597/2016. The First Appeal being A/468/2017 has been initiated by the Opposite Party in respect of self-same order. Therefore, since both the appeals have arisen out of a common order, both the appeals being A/447/2017 and A/468/2017 will be disposed of by this common order.
The Appellants of A/447/2017 being Complainants lodged the complaint asserting that they booked a Europe Tour for 12 days titled 'Europe on Budget Summer, 2016' with OP M/s. Cox & Kings schedule from 04.06.2016 to 14.06.2016. The complainant no.1has paid Rs.3,51,900/- and complainant no.2 paid Rs.2,41,100/- for such tour and besides the said amount, the complainants also paid 556 Euro for schedule of optional tour. The complainants alleged that the tour was disastrous as the tour operator i.e. the OP could not keep their promises and flouted the terms and conditions. During the tour, the complainants have drawn attention to the tour Manager Mr. Yezdi Engineer but it yielded no result. The complainants have alleged that as per itinerary, their journey was scheduled from London to Paris through Eurotunnel but they were taken through Cruise via English Channel. The complainants have also alleged that during their stay at Switzerland they were not provided with proper accommodation and they had to board in a hotel which is nothing short of a road side inn. After completion of tour, the matter was referred to the higher authorities of the OP/Company but no fruitful purpose has been served. Hence, the appellants approached the Ld. District Forum with prayer for refund of money of Rs.3,51,900/- and Rs.2,41,100/- paid by them, Rs.25,000/- each as compensation for harassment and mental agony, Rs.10,000/- each as litigation cost etc. The Appellant of A/468/2017 being Opposite Party appeared but could not file written version within the stipulated period. Therefore, in accordance with the direction of Three-Judge Bench of Hon'ble Supreme Court reported in 2016 (1) Supreme 319 [New India Assurance Co. Ltd. - Vs. - Hilli Multipurpose Cold Storage Pvt. Ltd.] the OP was prevented from filing written version.
After evaluation of petition of complaint, the evidence led by the complainants and other materials available on the record, the Ld. District Forum by the impugned order allowed the complaint with cost of Rs.5,000/- with the direction upon the OP to pay compensation of Rs.20,000/- within one month from the date of order otherwise the OP shall be liable to pay penal damages @ Rs.5,000/- per month till full and final satisfaction of the awarded amount.
The Appellants of A/447/2017 has come up in this Commission with the present appeal on the ground that the amount of compensation awarded by the Ld. District Forum was much less which is 2.82% of their total claim. The appellant of A/468/2017 has preferred the appeal for setting aside the order.
I have scrutinised the materials on record and considered the submission advanced by the appellants of A/447/2017, who appeard in person and also the Ld. Advocate of appellant in A/468/2017.
On the threshold of his submission, Mr. Sudip Bose, Ld. Advocate of appellant in A/468/2017 has submitted that as per jurisdiction clause appearing in booking condition, the Ld. District Forum does not have any territorial jurisdiction and as per booking conditions, the dispute arises thereupon before the Courts/Forums at Mumbai.
Section 11(2) of the Act deals with the territorial jurisdiction of District Forum which reproduces below -
"(2) A complaint shall be instituted in District Forum within the limits of whose jurisdiction -
the opposite party or each of the opposite parties, where there are more than one, at the time of institution of complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or any of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or carries on business or has a branch office, or personally works for gain, provided that in such cases either the permission of the District Forum is given or the opposite parties who do not resides, or carry on business or have a branch office, or personally work for gain, as the case may be acquiesce in such institution; or the cause of action, wholly or in part arises.
The fact remains that the company engaged in tourism business which is spread all over the world and they are offering their services through out the country including Kolkata. The company has its several branch offices at Kolkata and the transaction was made by the appellants with the company at Kolkata. Therefore, as per provisions of Section 11(2) of the Act, the Ld. District Forum had territorial jurisdiction to take cognizance of the matter.
Ld. Advocate for the company has also taken a stand that in view of Arbitration Clause in the Agreement, a Forum constituted under the Act has no jurisdiction to entertain the complaint in view of provision of Section 8 of Arbitration and Conciliation Act.
In the case of DLF Ltd. - Vs. Mridul Estate Pvyt. Ltd. reported in III (2013) CPJ 439 the Larger Bench of Hon'ble National Consumer Commission considering several decisions of Hon'ble Supreme Court reported in - (1) the case of SBP & Co (supra), (2) National Seeds Corporation Ltd. - Vs. - M. Madhusudan Reddy & Anr., I (2012) CPJ 1 (SC), (3) Lucknow Development Authority - Vs. - M.K. Gupta, III (1993) CPJ 7 (SC), (4) Skypark Couriers Ltd. - Vs. - Tata Chemicals and several other judgements has observed that the Consumer Fora constituted under the C.P. Act are not bound to refer the dispute raised in the complaint on an application filed under Section 8 of the 1996 Act seeking reference of the dispute to an Arbitral Tribunal in terms of valid arbitration clause in the agreement entered into between the parties. The OP in CC/188/2010 preferred an appeal in the Hon'ble Supreme Court and the Hon'ble Supreme Court in the case of Rosedale Developers Pvt. Ltd. reported in (2015) 1 WBLR(SC) 385 has held that the National Commission did not commit any error by holding that the remedy of arbitration available to the complainant does not bar the jurisdiction of the Consumer Fora and the Consumer Fora are not under an obligation to refer the matter to the Arbitral Tribunal.
After amendment to Section 8 of Arbitration Act, 2015 a bunch of applications filed by the developers/builders and in disposing of the same the Larger Bench of the Hon'ble National Commission by an order dated 13.07.2017 (Aftab Singh - Vs. - Emaar MGF Land Ltd. & Anr.) has observed that in the context of consumer jurisprudence, the Hon'ble Supreme Court has not disturbed the earlier opinion regarding the arbitrality of consumer disputes rendered in the pre-amendment era rather it has affirmed the protection granted to the consumers from private resolution. After a detailed discussion with reference to several judgement of the Hon'ble Supreme Court including the decision reported in (2016) 10 SCC 386 (A. Ayyasamy - Vs. - A. Paramasivam & Ors.) the Hon'ble National Commission has arrived at the conclusion that in light of overall architecture of the Consumer Act and Court - evolved jurisprudence, amended Sub Section (1) of Section 8 cannot be construed as a mandate to the Consumer Forums, constituted under the Act, to refer the parties to arbitration in terms of the arbitration agreement. Consequently, the Hon'ble National Commission reject the arguments on behalf of the builder and hold up that an arbitration clause between the complainant and the builder cannot circumscribe the jurisdiction of a Consumer Forum, notwithstanding the amendments made to Section 8 of the 1996 Act.
At the time of hearing of the appeal, Ld. Advocate for the OP/Company has placed before me the itinerary for the tour and has candidly submitted that though the company was under obligation to shift the complainants from London to Paris through Euro Tunnel but they could not keep the words but made an alternative arrangement through English Channel by Cruise.
The materials on record reveals that out of ten nights journey of the tour, the complainants had to stay in Lucerne (Switzerland) for three nights and they were boarded in a hotel named 'Lowen' at Lungern. The condition of the said hotel was miserable and it is nothing short of a road side inn. The Google Review of the Hotel has been annexed with the materials on record. This indicates that the tour company adopted a strategy to keep the boarders in a hotel of low grade just to save money and to earn more profits.
These are glaring deficiencies on the part of the OP/Company. The complainants have stated that for the purpose of shifting them through Euro Tunnel, a cost of Euro 180 each has been collected but no document is forthcoming to that effect. Moreover, when the OP/Company had taken the complainants through English Channel, certainly they had to bear the cost of the same.
In any case, the OP/Company, as per itinerary, was under obligation to shift the travellers including the complainants from London to Paris through Euro Tunnel and as the OP/Company has failed to fulfil their promise to that effect, certainly the OP/Company was deficient in rendering services to the complainants.
Considering all the above, I think the imposition of compensation of Rs.20,000/- only will not be commensurate to the loss suffered by the complainants. No one can deny that the complainants have lost the opportunity of life time experience and which in turn causes their frustrations. Therefore, considering the loss suffered by the complainants, I am of the view that the amount of compensation awarded by the Ld. District Forum was on lower side and after considering the inconveniences and loss of opportunity suffered by the complainants, the amount of compensation, in my view should have been awarded at Rs.20,000/- each to the complainants namely - (1) Sri Saugata Bhattachaya and (2) Smt. Sumita De. Accordingly, the impugned order with regard to compensation should be modified to that extent.
However, I do not find and reason for imposition of penal damages of Rs.5,000/- per month as there was no averment or any prayer in the prayer clause of the petition of complaint. In a decision reported in (2015) 1 SCC 429 (General Motor (India) Pvt. Ltd. - Vs. - Ashok Ramnik Lal Tolat & Anr.) a question came up for consideration before the Hon'ble Supreme Court whether in absence of any prayer made in the complaint and without evidence of any loss suffered, the award of punitive damages is permissible?. In answering to the question - the Hon'ble Apex Court has observed - "Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered. Such a claim has to be specifically pleaded".
Neither there is any averment in the complaint about suffering of punitive damages by the other consumers nor the appellant was aware that any such claim is to be met by it and the appellant having no notice of such a claim, the said order is contrary to the principles of fair procedure and natural justice. Therefore, the order of punitive damages imposed by the Ld. District Forum is not sustainable in the eye of law.
In view of the above, the impugned Judgement/Final Order is modified to the extent that the appellant/OP shall pay compensation of Rs.20,000/- each to the complainants within 30 days from the date otherwise the amount shall carry interest @ 9% p.a. from date till its realisation. The order of litigation cost of Rs.5,000/- imposed by the Ld. District Forum is maintained which is to be paid to each of the complainant at Rs.2,500/- each within 30 days from date in default, it shall also carry interest @ 9% p.a. from date till its realisation.
With the above observations and directions, both the appeals stand disposed of.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER